Updated 05.16.2017

FAS Russia explained how to apply the law on advertising on the Internet

Sources in the regional OFAS report that the center insists on special control over advertising distributed on the Internet, despite the lack of personnel who know the specifics of the web and the workload of the rest offline.

Apparently in this regard, the FAS Russia, within the framework of providing methodological assistance, sent its explanations to the regional departments about the peculiarities of the application of legislation when placing advertisements on the information and telecommunication network "Internet" (letter of the FAS Russia dated 28.08.2015 No. AK / 45828/15 "O advertising on the Internet). Despite the seeming simplicity, some points require comments.

Is not an advertisement on the Internet:

1. Information about manufactured or sold goods posted on the manufacturer's website or a seller of goods or on pages on social networks, if the specified information is intended to inform visitors to the site or page on a social network about the goods sold, the assortment, the rules of use (alcohol companies can breathe easy - they can publish assortment and other information on their sites).

Examples of:

• a company that sells household goods posts on its website a catalog, photos of goods, their description and price - the Law "On Advertising" does not apply to this information;
• the same company places its banner on another site - the Law "On Advertising" applies to both the advertiser and the advertising distributor.

1. Information about discounts or ongoing promotions posted on aggregator sites(on sites that accumulate and offer various coupons or tickets that allow you to purchase goods at a discount).

Examples of: discount sites, couponers.

This is a very controversial position. Following this logic, specialized offline advertising publications should also be excluded from the law on advertising.

Most likely, the commission, having received a complaint about a violation of advertising legislation in the information presented on such a site, will nevertheless consider it on the merits, identifying a specific advertiser and holding him accountable. And the aggregator site, as follows from the explanations of the FAS, will not be responsible for inappropriate advertising (for example, if the declared discount on the product does not correspond to reality).

1. Search results are not ads and are not regulated by advertising legislation, because such information is the result of processing a user's search request and is not aimed at generating and maintaining interest in any product.

Is advertising on the Internet:

• information on the advertiser's website or in his social group. network aimed at drawing particular attention to specific product and its allocation among similar products (for example, a pop-up banner);
• contextual advertising (Yandex.Direct and similar).

FAS goes online

It will not be superfluous to recall how the FAS will identify inappropriate advertising on the Internet. These can be measures for the systematic tracking of information on Internet resources, applications of citizens and interested persons (most often, competitors), public organizations and other control departments (with interdepartmental cooperation, for example, with Roskomnadzor). In general, the same thing happens offline. The fundamental difference is only in the methods of recording the facts of advertising placement.

FAS employees have the right to record the facts of advertising detection by any means, for example:

• site inspection report;
• print screenshots (FAS terminology) of site pages;
• Internet archive (archive.org/web/).

In general, the list of fixing methods is not limited, even a photograph of a monitor with an open web page will be enough. And, yes - the FAS knows about the Internet archive 😎.

Problems of Internet Advertising Regulation

At the end of 2015, Roskomnadzor came up with an initiative to specifically regulate targeted advertising, since personal data is used to display it.

The FAS, in turn, noted that it does not see any special problem in contextual advertising that requires a special legislative regulation.

At the same time, there are certain problems associated with the peculiarities of the distribution of advertising on the Internet.

As you know, contextual advertising is shown to the user depending on his behavior in the network. And more and more often there are complaints that contextual advertising is pursuing everywhere. Moreover, such advertising can be shown even in cases where the user did not perform any obvious actions to identify his preferences (for example, he did not look for a certain product in a search engine, but discussed it with friends in private correspondence).

Given the ubiquity of smartphones and other smart gadgets, some experts believe that applications installed on it gain access to the microphone (or camera) and hear users' conversations. Further, this personal information can be sold to advertising distributors and used for targeting.

However, not all users are willing to share their privacy. Therefore, I believe that government bodies will continue to work in the legislative regulation of advertising on the Internet in this direction. Moreover, certain steps have already been taken.

Thus, Article 18.1 of the Federal Law "On Personal Data" provides for the obligation of the operator collecting personal data using the Internet to publish his personal data processing policy. And from July 1, 2017, fines for unlawful processing of personal data will increase.

I suppose that the next step can be determined by the responsibility of the advertiser for the use of personal data in order to display contextual targeted advertising on the Internet.

conclusions

As far as liability for inappropriate advertising is concerned, the penalties for “online errors” will not increase. Also, advertisers are still liable for any violations of the Law "On Advertising", and advertising distributors and advertising producers only in cases expressly provided for by law.

Be careful! With its explanation, the FAS made it clear that the advertising market on the Internet is already under its control.

(And how can you save more than 2 million rubles a year at the same time).

Tatiana Nikanorova especially for Kittens tells how to deal with payment for advertising activities on Facebook and Instagram - legally and at the lowest possible cost.

I live and work in Russia, so I wrote this article for companies operating under Russian laws. However, before sending the material to the editorial office, I contacted the Belarusian accountants and found out: “The law on Google” with identical rules in Belarus comes into effect on January 1, 2018.

Why is this a problem

If you are an experienced entrepreneur and already know why it is difficult to pay Facebook officially, you can skip the first two paragraphs and go straight to solving the questions. And for those who do not know, I will tell you everything from the very beginning.

There are two problems that put Facebook outside the legal framework.

Problem 1: Facebook won't issue paper documents in Russia

Nobody. None. Specialists in targeted advertising wrote to Facebook with a request to issue official primary documents for accounting, or at least explain why they are not issued, but Facebook did not even respond. The obvious fact is that Facebook collects money in the Russian Federation without bothering itself with legal issues.

Why is this critical? But because expenses that are not confirmed by primary documents cannot be accepted for tax purposes - and here all companies suffer from OSNO and STS “income minus expenses”. And for small firms on the 6% STS or patent, it is important that these expenses are not recognized as made in the interests of an individual, and, accordingly, taxed with personal income tax of 13% as income in kind.

Problem 2: Introducing Google Tax

"Tax on Google" is a new mechanism for collecting VAT on services in electronic form via the Internet (Article 174.2 of the Tax Code of the Russian Federation). Entered into force on January 01, 2017. So, in particular, the provision of advertising services on the Internet is subject to VAT on the territory of the Russian Federation. This is done in order to equalize the taxation of Russian companies that pay VAT on their services domestically, and prevent them from going abroad to optimize taxes.
Facebook, in accordance with the Tax Code of the Russian Federation, provides advertising services on the Internet, for which it takes money. In accordance with Russian legislation:

a) when providing services to individuals, Facebook must register in the Russian Federation and pay tax on its own;

b) when providing such services to legal entities or individual entrepreneurs, the latter are tax agents, and must independently calculate, pay VAT and submit a tax return.

Example:
My company pays Facebook directly with a corporate card. Let's say our advertising budget is 10,000 rubles per month. From January 1, my company becomes a tax agent, and every month I have to calculate VAT in the amount of 18% of the amount spent: 10,000 / 100 * 18 = 1,800 rubles. In 3 months, 1,800 * 3 = 5,400 rubles will run. The amount of tax is 5400 rubles. - my company must pay to the budget by April 25 (by the 25th of the month following the reporting period) and submit the VAT return to the tax authorities in electronic form at the same time, despite the fact that I am on the simplified tax system.

Facebook Penalties:

As far as I know, at the time of this writing (early February), Facebook has not been registered with the Russian tax authorities. Consequently, the provision of services by her to Russian citizens is outside the legal framework. According to the law, Facebook is entitled to a fine for this in the amount of 10% of all income received, but not less than 40,000 rubles (clause 2, article 116 of the Tax Code of the Russian Federation).

Solutions

There will be several solutions - depending on which taxation system the company or individual entrepreneur applies.

Business on OSNO

A company on the traditional taxation system is already a VAT payer. According to the tax code, VAT calculated by a legal entity (or individual entrepreneur) as a tax agent can be deducted. There will be no additional tax burden. Such a company can safely pay Facebook officially.

The scheme of actions is as follows:

1. Every month the accountant charges 18% of the amounts paid by Facebook.
2. At the end of the quarter, the accountant prepares a VAT return and enters the Facebook VAT data into it in the sales ledger and in the shopping ledger at the same time.
3. There are no additional taxes.

What about the missing primary documents?

Yes, unfortunately, there will be no primary documents from Facebook, so it will be inappropriate to reduce income tax on the amount of advertising costs. However, the lack of primary documents does not prevent the payment from being made officially. To prevent advertising costs from being imputed to any employee or CEO as personal income, you need to maintain confirmation that the costs were incurred for production purposes. Or, in the strict language of the code - economically justified.

Simply put, you need to prove that you advertised your own services or products, or the services and products of your clients, if you are an SMM agency.
You can prove this in the following way: collect information that confirms the content of advertising campaigns. It will be enough to save a detailed report from the Ads manager (the section and its corresponding menu item on Facebook), which shows which campaign the money was spent on and in what amount.

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A particularly meticulous accountant may report that this report does not show what exactly was advertised, but only the names of advertising campaigns. In practice, if a check comes, you can open your ad account and show the content of the ad posts to the checking inspector. There is a 99% chance that he will be satisfied. If not, print screenshots, this will satisfy both the inspector and the court.

Actually, all you need to do is prove that this advertisement was published in favor of your company, or in favor of your clients, if you are an SMM agency, and not in favor of third parties who are not clients.

Particularly cautious accountants can hedge themselves and draw up an order in which management orders to spend expenses on Facebook without supporting documents, with the provision of details from the advertising office.

Business on the simplified tax system, patent, UTII or tax holidays

All taxation systems listed in the subheading do not calculate VAT. The catch is that, unlike OSNO, a simplified company cannot take paid VAT for offset. For such a company, the tax burden will increase - by exactly 18% from the amounts paid to Facebook.

Scheme of actions:

1. Every month the accountant charges 18% of the amounts paid on Facebook.
2. At the end of the quarter, the accountant prepares a VAT return and enters the data on Facebook VAT into it - in the sales ledger.
3. Until the 25th day after the end of the quarter, the accountant pays the calculated VAT and submits the tax return.

How can you avoid the cost of this VAT?

The only way: to withdraw money legally (!) To physical. person and pay for advertising on Facebook from an individual's card. This is completely legal for an individual who is not an individual entrepreneur, but it is completely illegal for Facebook, however, physical. the person for FB is not responsible, at least at the time of this writing.

I will not describe in detail the methods of legal withdrawal of funds in this article, I will just list them.

Legal withdrawal methods:

1. Pay tax, and then transfer money to a personal card.

For LLC and other commercial legal entities. persons (in ascending order of tax burden):

1. Payment for the services of the manager-individual entrepreneur (6%).
2. Payment of dividends (13%).
3. Salary payment (43.2%).

Obviously, the latter method is unprofitable, and it is easier to pay VAT than to withdraw money with a salary. But the first two can be used quite well.

Example:

A small but rather successful SMM agency (LLC). The turnover is less than 150 million rubles per year, so the company applies the STS 6% of income. The agency provides targeted advertising services on social networks, the budgets of agency clients for advertising on Facebook are 2 million rubles. per month.

Note: I specially took an advertising budget of 2 million rubles a month. The fact is that Russian banks block the withdrawal of funds in large volumes, and it is very difficult to find a bank with a low commission for withdrawing large amounts. On average, 150-300 thousand rubles a month are withdrawn without any problems. Anything higher is either a large percentage, or the bank does not allow such a withdrawal at all. Therefore, for our example, we will also take into account the bank's commission, which will be taken by Sberbank - it will be 1%.

If you conduct Facebook officially:

• 2 million * 12 months / 100 * 18 = 4.320 million rubles of additional tax per year + declaration.

If you withdraw money through dividends:

• 2 million * 12 months / 100 * (13 + 1) = 3.360 million rubles of additional tax per year (which is 0.96 million rubles per year less than the official version).

If you withdraw money through the Manager-IP

• 2 million * 12 months / 100 * (6 + 1) = 1.681 million rubles of additional tax per year (which is 2.639 million rubles per year less than the official version).

be careful

Big games at the country and mega-corporation level can affect your earnings. And you cannot blame anyone for your losses if you yourself do not control all operations. Even Trump.

All the experience of the Profdelo company confirms this. If you do not respond to changes in legislation in time, the consequences accumulate imperceptibly and inexorably. We believe that it is better to prevent the problem than to waste energy on raking the consequences.

Due to the explosive growth of interest in the Internet and, in particular, in social networks, advertising is becoming more and more attractive. However, many accountants are afraid to indicate this item in the expense item, since they do not clearly understand what documents are required to confirm expenses.

We take into account the costs

The number of users of social networks is constantly growing, since everyone who has passed the simplest registration can use them. Placing banner ads on social media pages is popular and effective. But it is impossible to predict in advance who will see such an ad. Therefore, it can be viewed as advertising aimed at a wide range of people. According to subparagraph 28 of paragraph 1 and paragraph 4 of Article 28 of the Tax Code of the Russian Federation, the costs of it can be taken into account without standardizing.

But there are many other features when accounting for advertising. For example, Facebook and some other social networks on the territory of the Russian Federation do not have their own representative offices. When buying an advertising space in such a company, the company does not pay income taxes for a non-resident, but it remains a tax agent for VAT.

You need to carefully review the contract, and if it does not provide for VAT, you should charge it in excess of the price and pay to the budget, along with payment for the service (see the Tax Code of the Russian Federation - subparagraph 4, paragraph 1, article 148 and paragraph 4 of Art. 174).

We confirm expenses

Advertising is carried out on the social network through the employee's account. At the same time, the employee himself provides an advance report and attaches documents confirming payment to it. In this case, it must be borne in mind that the agreement and all acts to it are drawn up in electronic form.

- Contract. On the social network, it is customary to conclude an offer agreement when providing paid services. It is considered automatically concluded after payment has been made. As a supporting document, it is necessary to attach to the copy of the agreement an extract from the employee's bank card with which the payment was made.

- Acts. The certificate of services rendered can be printed out in the employee's personal account. There you can also find information about advertising placement, or a payment journal with a report. Most often, there is also information about ID, date, titles and other details. It is also recommended to take a screenshot of the screen. He can confirm that the ad was actually published.

- Help and other documents. We also advise you to draw up an accounting statement, since all acts and contracts exist in electronic form. In the help, you need to write why there are no original documents without seals and signatures. It is also worth mentioning the need for advertising on the Internet in the marketing plan. There should also be indicated an action plan, an approximate plan and an estimate of the planned costs.